Can you mandamus a judge who has already recused himself? [Nov. 1, 2013]

With today’s orders list, the Texas Supreme Court did not grant any cases for argument or issue any merits decisions.

It did issue one interesting opinion, however, granting an abatement in a mandamus action. That opinion resolves a split among the courts of appeals about how to proceed after a trial judge has recused himself or herself.

Opinion

If a trial judge whose order is being challenged is later recused, the court of appeals should either abate or deny relief

One of the ways that mandamus practice differs from most appellate practice is that the procedure is personal to the officeholder (judge or official) whose decision is being challenged.

With the use of mandamus to challenge fairly common pretrial orders, there is a mismatch between error and remedy — the “writ” of mandamus is the state compelling behavior by one of its officeholders. (( This is why the normal practice is for Texas courts to issue mandamus “conditionally,” together with a polite sentence stating the court’s confidence that the order will be obeyed. No one wants to issue the writ unless truly needed. ))

As an artifact of this system, the Texas rules provide that a former trial judge cannot be mandamused. Conventional appeals involving that judge continue; they are not personal to the judge. But the mandamus action must be abated until a new judge holding that office is first given a chance to revisit the issue. Tex. R. App. P. 7.2 (discussing what happens “if that person ceases to hold office before the … original proceeding is finally disposed”).

The courts of appeals were split three ways on what to do if a judge had merely recused themselves, and not ceased to hold office: Some held that the mandamus must continue because Rule 7.2 was not triggered. Some held that the mandamus must be dismissed outright. And some held that the court of appeals should abate, much as it would if the judge had ceased to hold office.

Rather than parsing the language of the rule, the Supreme Court looks to the appellate courts’ more general discretion not to grant mandamus relief. It holds that an appellate court faced with this situation should either abate or, depending on the circumstances, dismiss the mandamus petition. It is up to the appellate court “to determine which of the approaches affords a better and more efficient manner of resolving the dispute.”

The underlying facts here involve an order transferring children from foster parents to a biological father that had been deported to Mexico, bringing to mind the situation in IN THE INTEREST OF E.N.C., J.A.C., S.A.L., N.A.G. AND C.G.L., No. 11-0713
. Apparently to put a firm deadline on resolving the issue, the Court abated the mandamus proceeding and directed the new trial judge to report back no later than December 20, 2013.